HDC APPEALS ARE NOT WHAT THEY USED TO BE…

A recent ZBA decision sets a new precedent allowing property owners to get building permits and to build, even during a pending HDC appeal. While property owners should still proceed with caution, this recent change regarding development of Nantucket property is important information for all Nantucket property owners, real estate agents, builders, and designers. Previously, an HDC appeal may have prevented the issuance of building permits, effectively allowing the neighbor to delay construction for years by filing an HDC appeal, even if it was meritless. This tactic was used by abutters to obtain undue concessions from land owners eager to build.  Now the barking neighbor has lost his bite.

In this case, the property owner initially obtained HDC approval to develop a vacant lot, despite objections from the neighbor. The neighbor appealed the HDC approvals to the Select Board and also appealed the building permits to the Zoning Board, arguing that the original appeal of the HDC approvals should have stopped the Building Commissioner from issuing building permits. Our office, presented arguments on behalf of the property owner on the HDC appeal, and the Select Board and, ultimately, the Superior Court ruled with us on the appeal and when the neighbor sought an injunction to prevent construction. The ZBA also decided to uphold the decision of the building commission to issue the building permit and denied the neighbor’s appeals.

This new ruling, while certainly fact dependent, effectively supports a property owner obtaining permits and proceeding with construction, at their own risk, even with an HDC appeal pending. Building with an HDC appeal pending is similar to doing work during an appeal of a Special Permit, which was allowed by a change in the law a few years ago.  That said, not all permits and appeals are equal; this new ruling is HDC specific and an appeal of a ZBA Variance or a ConCom Order still can prevent work from being done during the appeal.

In most instances, we suggest seeking advice from a lawyer before proceeding.